In right of publicity lawsuit against rapper Cardi B for using plaintiff’s back tattoo in sexually suggestive manner on cover of her debut album, district court denies defendants’ motion for summary judgment, holding that transformative fair use is question for jury, but excludes testimony of plaintiff’s damages expert because it was not product of reliable principles and methods.
Rapper and television personality Belcalis Almanzar (popularly known as Cardi B) released her debut mixtape, titled Gangsta Bitch Music Vol. 1 (GBMV1), in 2016. Cover art for the album depicted Cardi B holding a man’s head facedown between her legs with his tattooed back clearly visible. The unique back tattoo at the center of the image belongs to Kevin Michael Brophy Jr., who brought suit against Cardi B and others for false light invasion of privacy, violation of California’s statutory right of publicity, Civil Code § 3344, and misappropriating his likeness in a “misleading, offensive, humiliating and provocatively sexual way” in order to launch Cardi B’s music career. There was no dispute that plaintiff’s tattoo was used to make the GBMV1 cover. Rather, the graphic designer who created the cover art found the image of plaintiff’s tattoo on the internet and manipulated the design onto the back of the male model featured on the cover.
Defendants moved for summary judgment, arguing that the album cover constitutes transformative fair use, that plaintiff’s false light claim is barred by the statute of limitations and that plaintiff’s proposed expert testimony on damages was not the product of reliable principles and methods.
As to the transformative fair use defense, defendants argued that their graphic designer manipulated the tattoo image such that it constituted transformative fair use. The court was not convinced, however, finding that a reasonable jury could conclude that the changes made to the photo lacked sufficient transformative elements or creative contributions necessary to support a fair use defense—particularly since the most defining elements of the tattoo (namely, the tiger and snake designs) remained virtually unchanged on the album cover.
Defendants also argued that plaintiff’s damages expert’s testimony was unreliable and must be excluded. The damages expert concluded that all of the royalties from Cardi B’s GBMV1 album, which were over $1 million, were attributable to plaintiff’s likeness. The expert simply added up the revenue from streaming services that displayed the cover art whenever someone listened to the mixtape. Plaintiff’s damages analysis also included approximately $600,000 of revenue from Cardi B’s subsequent album, Gangsta Bitch Music Volume 2, on the theory that that album was played automatically after someone finished listening to GBMV1. The court agreed with defendants that plaintiff’s expert’s damages calculations were unfounded. While experts are “permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation,” they are held to the minimum standard that their testimony must be “based on sufficient facts or data” and be “the product of reliable principles and methods.” The court found no reasonable basis to accept the expert witness’s assertion that plaintiff’s likeness on the cover art contributed to consumers’ decisions to stream or purchase GBMV1, thereby generating royalties to defendants. In addition, the damages expert could not point to any data or evidence to show that defendants would have earned less revenue had plaintiff’s likeness not been used on the cover. Since the jury may award only damages actually attributable to defendant’s liability, the court excluded plaintiff’s proposed expert testimony.
Finally, the court denied defendants’ request to amend their answers to assert a statute of limitations defense to plaintiff’s false light claim. While the court acknowledged that leave to amend pleadings should be given freely, it noted that in this circumstance it would be futile and would result in prejudice to plaintiff. Defendants did not raise this defense until after the parties completed written discovery, thereby denying plaintiff an opportunity to conduct discovery targeted at this specific issue. Furthermore, defendants republished GBMV1’s cover art on physical vinyl records in 2019 and authorized and profited from its use on other streaming platforms within the statute of limitations period, rendering the limitations defense futile